Texas federal judge blocks Biden’s deportation ‘pause’

Bizar Male

Though the order is temporary, the state’s lawsuit portends more legal challenges by Biden opponents, appealing to a judicial branch reshaped by the confirmation of hundreds of Trump appointees.

Paxton, a close Trump ally, celebrated the ruling as a “victory” on Twitter and declared Texas “the FIRST state in the nation to bring a lawsuit against the Biden Admin. AND WE WON.”

In one of his first executive actions, Biden ordered U.S. Immigration and Customs Enforcement to halt most deportations from the interior of the United States for 100 days. The pause was intended to allow ICE to overhaul its enforcement priorities, amid intense criticism from Democrats that President Donald Trump had used the agency to terrorize immigrants who had not committed violent or other serious crimes.

Biden’s moratorium did not apply to border-crossers who arrived in the United States after Nov. 1, and it allowed for other exceptions including matters of national security. Conservatives were incensed that Biden’s pause would prevent most deportations of criminals with violent felony convictions, potentially allowing their release into the United States once they’d completed jail or prison sentences.

Texas argued that the moratorium would place an unfair burden on the state and that the measure violated an agreement Paxton and Gov. Greg Abbott (R) had signed with Ken Cuccinelli, then serving as acting deputy secretary of the Department of Homeland Security, less than two weeks before Biden was sworn in.

Tipton’s ruling did not address the agreement, which the Biden administration does not recognize as legally binding.

The state also referenced a Fox News report citing an internal ICE email calling for the mass release of detainees. But government attorneys provided the email to the court Monday, indicating that its contents had not been accurately reported by the network.

In his tweet, Paxton described Biden’s deportation pause as “a seditious left-wing insurrection,” repeating a term used by lawmakers of both parties to describe the Jan. 6 mob attack on the U.S. Capitol.

Tipton, who was appointed by Trump in June, made explicit in his ruling that the restraining order applies nationwide. He scheduled a new hearing Thursday and called the issues raised by the DHS agreement with Texas “of such gravity and constitutional import that they require further development of the record and briefing prior to addressing the merits.”

Tipton also left open the possibility that he would narrow his ruling in the coming weeks.

“The Court notes that the scope of this injunction is something it is willing to revisit after the parties fully brief and argue the issue for purposes of the upcoming motion for preliminary injunction,” he wrote. “Though the scope of this [temporary restraining order] is broad, it is not necessarily permanent.”

Tipton directed ICE to return to its previous operational posture, effectively directing the agency to resume deportations. An ICE official said the agency was preparing a statement.

When Trump took office in 2017, he ordered several immigration-related moves, including a ban on travel from certain Muslim-majority countries that unleashed chaos and protests at U.S. airports. His administration separated more than 3,000 migrant children from their parents during a 2018 border crackdown, a “zero tolerance” policy that Biden’s Justice Department formally rescinded Tuesday.

Hundreds of additional executive actions by Trump were disputed in the federal court system. Immigrant advocates and attorneys filed many of those motions in California’s U.S. Court of Appeals for the 9th Circuit. The Southern District of Texas, where Tipton presides, is part of the 5th Circuit, which is considered among the country’s most conservative.

The American Civil Liberties Union, which led legal opposition to Trump’s immigration policies and filed a brief opposing Paxton, criticized Tipton’s ruling.

“This lawsuit should not be allowed to proceed,” Kate Huddleston, an attorney for the ACLU of Texas, said in a statement.

“Paxton sought to overturn the results of the 2020 presidential election by attempting to baselessly suppress votes; now he is attempting to force the Biden administration to follow Trump’s xenophobic policies,” Huddleston said. “The administration’s pause on deportations is not only lawful but necessary to ensure that families are not separated and people are not returned to danger needlessly while the new administration reviews past actions.”

Kari Hong, an immigration scholar at the Boston College of Law, called Tipton’s ruling “baffling,” saying it opened the door for states to sue the federal government over any immigration policy change that might affect them.

Just as Texas argued that a deportation freeze could impose financial burdens on its state budget, Hong said, California could sue by arguing that the separation of children from their deported parents leads to additional foster-care costs.

Tipton “seems to invite states to be litigating matters of national policy, which is a slippery slope that will end in chaos,” said Hong. She also noted that the U.S. Supreme Court has chided lower courts for issuing nationwide injunctions and rulings.

ICE officials have long relied upon “prosecutorial discretion” to set and adjust immigration enforcement priorities, and during President Barack Obama’s second term, immigrants who did not commit violent or serious crimes were more likely to be spared from arrest and deportation.

Trump reversed that policy upon taking office, an approach his administration celebrated as removing the “shackles” on ICE officers who were given a freer hand to arrest anyone who lacked legal status.

A new priority system Biden laid out, set to take effect Feb. 1, will more narrowly target serious and violent offenders once again. Tipton’s restraining order does not address that priority system, so Hong said ICE still has discretion to deport — or not deport — whomever it wants.

“Tipton’s saying Texas has the right to stop [the pause on] deportations but inherently recognizing that not all deportation will happen,” Hong said. “It’s an illogical decision that quickly falls upon itself.”

Maria Sacchetti contributed to this report.

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